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Interesting Initial Disclosures From AA UPDATED 5/17 Need Help ASAP!

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I just received my initial disclosures from A$$et Acceptance. Initally I didn't think much of them but as I thought about them a bit and read them a bit closer, some I found some interesting things and need to know if they are worth my time and what I should do. Keep in mind that these are in Utah and they are not actually filed with the court. From what I understand, this means there is nothing to file any motions against. Below is a summary of what I found.

1. The most glaring thing was that they listed Asset Acceptance and Dell Financial Services as "Individuals With Discoverable Information and May Call Fact Witnesses" The rule indicates that they need to provide the name and address of each Individual. As these are companys and not individuals it would seem that they have not complied with the rule. Am I correct in my thinking here and if so, is it worth my time to address and how should it be addressed? My concern is that if I don't do something, they can use ANY employee from the 2 companies under the excuse that they disclosed.

2. Under Asset's listing as a witness, the provide the following.

Subject of Testimony: account history, communications between Plaintiff and

Defendant, any communications regarding this account, account transactions, account liabilities,

account obligations, account records, account balance, interest rate, finance charges, terms and

conditions, contract, agreement, charge off, chain of title, assignment, sale or transfer of the

account, any amendments or notices concerning the above, and payments made, if any .

Summary of Testimony Defendant applied for a credit account. At the time the account

was opened, Defendant was provided with an agreement setting forth the terms and conditions of

the contract between the parties. Defendant accepted and used the credit account and thereby

assented to all terms of the agreement. Defendant agreed to make periodic payments whenever

there was a balance due on the account. Periodic statements were sent to the Defendant

reflecting transactions, interest rate, charges, or fees. Defendant failed to pay according to the

terms and conditions on the credit account or as required by equity. Plaintiff holds all rights to

the account

The thing that has me wondering is the summary of testimony. Assett cannot possibly testify to just about all of this as they are not the OC. Correct? If so is it worth my time to address and how should I address it?

My initial thought on this is that I should send the attorney a letter pointing out their definicies and requesting that they clarify. And then if they don't, file for Sanctions and a Motion to Compel.

Thoughts?

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Review Rule 26 carefully as to those things that are required. You will find many of the things they claim they will use, but did not disclose are in that rule. There is a bit of back and forth on opinion here and there is no case law due to the rule only being a year old in its current form. However just to cover bases I would send a meet and confer letter pointing out their discrepancies.

 

You are not going to want to file a motion to compel. Rule 26 says the court should properly exclude evidence that is required by rule 26 to be disclosed. You will want to file a motion in limine or motion to preclude (those terms are used interchangeably in Utah). Although they have not been filed with the court, you will want to raise the objection to the material or lack thereof in a reasonable time or waive your objection.

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Thanks KentWA so if I understand what you are saying, if they expect a witness to testify about chain of title (for example) but they did not provide a document detailing this in the disclosures then they cannot use that document later? I have been over and over rule 26 but the fact that they listed business names and not individual kind of threw me a curve ball.

 

I should also mention that they only documents they disclosed were the generic card agreement and what appears to be a screen print from the attorney's office(Not even from AA).

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One other question Should I file the Motion to Preclude at the same time as I send the Meet and Confer or should I wait to give them time to address the letter?

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Ok so here is my first stab at a meet and confer letter for their disclosures. Any feedback is appreciated

Dear Mr JDB Attorney,

I am writing in regards to the Initial Disclosures for case XXXXXX that were served to the Defendant on April XX 2103. Upon review of these disclosures, Defendant has significant concerns regarding the accuracy and completeness of these disclosures. Defendants concerns are outlined below.

Plaintiff's Witness 1 Asset Acceptance LLC:

Plaintiff lists Asset Acceptance LLC as a Fact Witness or an individual that may have discoverable information.

A.URCP 26 states that Initial Disclosures should disclose

(a)(1)(A) the name and, if known, the address and telephone number of:

(a)(1)(A)(i) each individual likely to have discoverable information supporting its claims or defenses, unless solely for impeachment, identifying the subjects of the information; and

(a)(1)(A)(ii) each fact witness the party may call in its case-in-chief and, except for an adverse party, a summary of the expected testimony;

As Asset Acceptance LLC is not an individual, this disclosure is incomplete and improper. Additionally since it appears that Elizabeth Gamache appears to be an employee of Asset Acceptance and is specifically named as a witness, it is not unreasonable to expect the individual names of all currently known employees of Asset Acceptance that are fact witnesses, may be called to testify, or that are likely to have discoverable information.

B. Plaintiff indicates that this witness will testify regarding the following information:

Defendant applied for a credit account. At the time the account was opened, Defendant was provided with an agreement setting forth the terms and conditions of the contract between the parties. Defendant accepted and used the credit account and thereby

assented to all terms of the agreement. Defendant agreed to make periodic payments whenever there was a balance due on the account. Periodic statements were sent to the Defendant reflecting transactions, interest rate, charges, or fees. Defendant failed to pay according to the terms and conditions on the credit account or as required by equity. Plaintiff holds all rights to the account from the original credit issuer and is entitled to recover the balance due on the account.

Defendant asserts that this witness cannot possibly testify to these items as the witness a listed is a business entity and not an individual. Additionally any employee of Asset Acceptance is not an employee of the original credit issuer and cannot possibly have personal or first-hand knowledge of the alleged original account as would be required to testify regarding these points.

Plaintiff's Witness 2 Dell Financial Services/CIT Online Bank:

Plaintiff lists Dell Financial Services/CIT Online Bank as a Fact Witness or an individual that may have discoverable information.

A.URCP 26 states that Initial Disclosures should disclose

(a)(1)(A) the name and, if known, the address and telephone number of:

(a)(1)(A)(i) each individual likely to have discoverable information supporting its claims or defenses, unless solely for impeachment, identifying the subjects of the information; and

(a)(1)(A)(ii) each fact witness the party may call in its case-in-chief and, except for an adverse party, a summary of the expected testimony;

As Dell Financial Services/CIT Online Bank is not an individual, this disclosure is incomplete and improper. It is not unreasonable to expect the individual names of all currently known employees of Dell Financial Services/CIT Online Bank that are fact witnesses, may be called to testify, or that are likely to have discoverable information.

Plaintiff's Witness 3 Elizabeth Gamache:

A: Plaintiff indicates that this witness will testify regarding the following information:

Defendant applied for a credit account. At the time the account was opened, Defendant was provided with an agreement setting forth the terms and conditions of the contract between the parties. Defendant accepted and used the credit account and thereby

assented to all terms of the agreement. Defendant agreed to make periodic payments whenever there was a balance due on the account. Periodic statements were sent to the Defendant reflecting transactions, interest rate, charges, or fees. Defendant failed to pay according to the terms and conditions on the credit account or as required by equity. Plaintiff holds all rights to the account from the original credit issuer and is entitled to recover the balance due on the account.

Defendant asserts that this witness cannot possibly testify to these items as the witness is not an employee of the original credit issuer and cannot possibly have personal or first-hand knowledge of the alleged original account as would be required to testify regarding these points.

Defendant requests that that the Plaintiff supplement their Initial Disclosures with the following information. Defendant requests delivery of this information within 10 days of the date of this letter. Please note that this letter does not replace Defendants right to standard fact discovery and is simply an attempt to cure the deficiencies in the Plaintiff's disclosures.

The individual name, and if known, address and phone number of any currently known Asset Acceptance employees that are fact witnesses, may be called to testify, or that are likely to have discoverable information. If there are no additional known individuals at this time, Defendant requests that Plaintiff state as such.

2. The individual name, and if known, address and phone number of any currently known Dell Financial Services/CIT Online Bank employees that are fact witnesses, may be called to testify, or that are likely to have discoverable information. If there are no known individuals at this time, Defendant requests that Plaintiff state as such.

3. An accurate summary of expected testimony expected from Plaintiff's Witness 3 Elizabeth Gamache.

4. An accurate summary of expected testimony for any additional individuals identified through requests 1 and 2 above.

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I am not sure I would even do a M & C letter, I have similar issues, but my rule 26 states plain ole disclosure--not initial, so if they didn't get it right the first time, they can't amend without asking the court first. Of coarse my disclosure is filed with the court.  I am doing a montion in limine objecting to the witness.  Do you have to file your final disclosure with the court? Do they allow you to amend? I don't want to give them opportunity to fix their tying to skirt around the rules.  Just a thought.  Do you want me to send you my rough draft of my motion in limine? (still working and changing things, but it is long, might be something in there you can use)  I know Utah's rules are very similar to Colorado's.  If you want to see it, just PM me your email address.

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No We do not file the actual disclosures with the court. Just the Certificate of Service. I think the part of the rule below is probably the key part of the rule and why I would need to do a Meet and Confer before filing the Motion to Preclude/Limine. 

 

If a party learns that a disclosure or response is incomplete or incorrect in some important way, the party must timely serve on the other parties the additional or correct information if it has not been made known to the other parties. The supplemental disclosure or response must state why the additional or correct information was not previously provided.  If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.

 

 

In general it seems that the courts here prefer a good faith effort to resolve the issues before motions are filed. In fact they require it  for Motions to Compel/Sanctions. Honestly I expect them to ignore the letter. At that point I think I would have a strong case to move for preclusion. 

 

I would love to see your motion. This rule is pretty new ground here in Utah so there's not muchout there about it. I'll send you my email address.

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sounds good except this

3. An accurate summary of expected testimony expected from Plaintiff's Witness 3 Elizabeth Gamache

I would also include for them to list her qualifications.  What is her title within the company.

 

You want to see if she can fall within the "expert testimony" category, if so, she has to provide you with alot of additional information. Utah's rule 26 (a)(4)

 Expert testimony.

 

(a)(4)(A) Disclosure of expert testimony. A party shall, without waiting for a discovery request, serve on the other parties the following information regarding any person who may be used at trial to present evidence under Rule 702 of the Utah Rules of Evidence and who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony: (i) the expert’s name and qualifications, including a list of all publications authored within the preceding 10 years, and a list of any other cases in which the expert has testified as an expert at trial or by deposition within the preceding four years, (ii) a brief summary of the opinions to which the witness is expected to testify, (iii) all data and other information that will be relied upon by the witness in forming those opinions, and (iv) the compensation to be paid for the witness’s study and testimony.

(a)(4)(B) Limits on expert discovery. Further discovery may be obtained from an expert witness either by deposition or by written report. A deposition shall not exceed four hours and the party taking the deposition shall pay the expert’s reasonable hourly fees for attendance at the deposition. A report shall be signed by the expert and shall contain a complete statement of all opinions the expert will offer at trial and the basis and reasons for them. Such an expert may not testify in a party’s case-in-chief concerning any matter not fairly disclosed in the report. The party offering the expert shall pay the costs for the report.

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I have been crazy busy lately and not been on here since my last post. Although the rules do not indicate anything about needing to meet and confer, the sanctions rule says you must. You never know if the court is going to read the new rule as it is written and exclude on that fact or read the exclusion part as a sanction. There is also the matter of raising objections in a timely matter in Utah or waiving the objection.

 

My feeling is that if they do disclose something that is not in conformance, you should raise the matter with a M&C, then a motion in Limine when they do not fix it. If they disclose nothing then you can always wait and then when they attempt to use something like at MSJ, raise rule 26 objection and move to exclude everything and anything they did not disclose.

 

One more matter to raise in your M&C, what is the source of the alleged Terms and Conditions? They had better say the OC and not from the OCs web site, AA or their own files.

 

 

Defendant requests that that the Plaintiff supplement their Initial Disclosures with the following information. Defendant requests delivery of this information within 10 days of the date of this letter. Please note that this letter does not replace Defendants right to standard fact discovery and is simply an attempt to cure the deficiencies in the Plaintiff's disclosures.

Add: If Plaintiff fails to properly supplement initial disclosures in the time given, defendant will seek all appropriate remedies from the court.

 

Don't tell them you will move to compel or exclude, they are the lawyers they "should" know what remedies are available. If they have half a brain (I know that is stretching it for a JDB lawyer) and they read this, they are going to begin to realize that you are serious and not just a cut and paste defendant. If they have less than half a brain, when you file the motion to exclude everything they have not disclosed they will get a wake up call.

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Thanks KentWA I understand how crazy things can get some times and appreciate your help. This brings a couple questions to mind. Should I be concerned about crossing the line between clarifying their disclosures and going into what could be considered formal discovery?  Since I only get 5 admissions and 5 Requests for Production I want to make sure that I'm not stepping into that area by asking about the source of documents, witness qualifications etc...

 

And second, moving on to Discovery. I am planning to argue standing. The ONLY documents they provided were a copy of the card terms and what looked like a screen print from the attorney's office. I'm confused about what documents I should request (If any). I'm going back and forth on the Forward Flow/Sales Agreement. Is that something I would need or is it giving them a chance to get evidence admitted that they did not disclose.

 

And finally Admissions. Here are thier request for Admissions

 

1. Admit you entered into a contract with DELL FINANCIAL SERVICES/CIT ONLINE BANK thereby agreeing to pay for the balance on the Account.
2. Admit that you used, or authorized the use of, the Account to obtain goods, services, or money.
3. Admit that you did not dispute, within sixty (60) days and in writing, any item in the periodic written statements sent to you regarding this Account.
4. Admit you failed to make all payments pursuant to the terms of the contract.
5. Admit Defendant is indebted to DELL FINANCIAL SERVICES/CIT ONLINE BANK and its subsequent assignee, the Plaintiff, for the Account Balance as defined above with interest at the rate of 10.00% .

 

They have requested 6 years of bank statements. I am going to object based on overly broad and burdensome. However if they do get them, there may be a chance that payments will turn up. Would it be better just to admit to 1-4 and a partial admission to 5 (Saying that I am indebted to Dell)?

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First of all have they properly identified the alleged account? From what I have seen they have not, therefore what account are you admitting to? Deny them all and make them prove it. Object based on over broad like you have, additionally object on privacy grounds. Worst case if they do a motion to get them you ask as an alternative to have a protective order placed which only permits outside counsel to review it. They are following their standard play book in an attempt to intimidate. Wait out the 30 days you have to respond to the discovery, other than the admissions (get those back right away).

 

In the mean time start to bury them with paper, at some point they are going to have to decide if the level of effort you are going to force them to do is worth it. Before long they will fold and want to dismiss.

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 Got it. They did provide a print out that had my name, address, phone, ss#, dob, an account reference number(Not sure who's). And OC name and contact info. However it appears to be something from them so I don't think they have properly identified it. Sorry I'm just really stressed out by all of this. I'll get the admissions back ASAP. I'm leaving on a trip for a week so I may not have time to get them out until after I get back. I may have some time to work on them while I am out so when I get back I can hit them with the admissions, discovery answers,and the Meet and Confer all within that same week. 

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Even with all that stuff, do you know that the account is yours. Most people do not memorize their account numbers and since you have no records of this account at all you have nothing to compare it to. Therefore you can not admit to it.

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 Got it. They did provide a print out that had my name, address, phone, ss#, dob, an account reference number(Not sure who's). And OC name and contact info. However it appears to be something from them so I don't think they have properly identified it. Sorry I'm just really stressed out by all of this. I'll get the admissions back ASAP. I'm leaving on a trip for a week so I may not have time to get them out until after I get back. I may have some time to work on them while I am out so when I get back I can hit them with the admissions, discovery answers,and the Meet and Confer all within that same week. 

 

Have they provided documentation that shows of all that information, including the "account reference number"?   If not, they can't back up the print out.  It could be argued that it's a self-serving document prepared merely for the sake of litigation.

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Got it. Much less stressed about this now, An Island vacation is JUST what I needed. I've run across some interesting answers to admissions that I think may apply. Instead of simply denying, they are objections. I'm thinking some of them could apply and maybe make my case that much stronger. I'll post them up here once I've had a chance to write them up. If anything it's more work for them and maybe they'll decide it's not worth it.

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Have they provided documentation that shows of all that information, including the "account reference number"?   If not, they can't back up the print out.  It could be argued that it's a self-serving document prepared merely for the sake of litigation.

No they have not. That's just what I was thinking I just didn't know how to say it.

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Ok I'm back from vacation and ready to go. I have the meet and confer ready to go out. Here's my response to their admissions that I listed above. For the Account definition they list a general statement about the account from the OC, the Attorney's Account Reference Number, and some other unidentified account number with X's except the last 4 numbers..

 

 

 

Any feedback is appreciated.

 

1.         Admit you entered into a contract With DELL FINANCIAL SERVICES/CIT ONLINE BANK thereby agreeing to pay for the balance on the Account.

 

Defendant objects to this Request For Admission on the ground that after reasonable inquiry the information known or readily obtainable by her is insufficient to accurately respond to this request. Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt and any agreement giving rise to the alleged debt and Plaintiff’s Initial Disclosures are insufficient. Defendant further objects on the ground that it is vague, ambiguous, and unintelligible in that the defendant has to speculate as to the meaning of “the Account “ as Plaintiff has provided multiple definitions for “the Account”. Based upon the foregoing, Defendant responds as follows: DENIED. 

 

2.         Admit that you used, or authorized the use of, the Account to obtain goods, services, or money. 

 

Defendant objects to this Request For Admission on the ground that after reasonable inquiry the information known or readily obtainable by her is insufficient to accurately respond to this request. Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt and any agreement giving rise to the alleged debt and Plaintiff’s Initial Disclosures are insufficient.

Defendant further objects on the ground that it is vague, ambiguous, and unintelligible in that the defendant has to speculate as to the meaning of “the Account “ as Plaintiff has provided multiple definitions for “the Account”. Based upon the foregoing, Defendant responds as follows: DENIED

 

3.         Admit that you did not dispute, Within sixty (60) days and in writing, any item in the periodic written statements sent to you regarding this Account.

 

Defendant objects to this Request For Admission on the ground that after reasonable inquiry the information known or readily obtainable by her is insufficient to accurately respond to this request. Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt and any agreement giving rise to the alleged debt and Plaintiff’s Initial Disclosures are insufficient. Based upon the foregoing, Defendant responds as follows: DENIED

 

4.         Admit you failed to make all payments pursuant to the terms of the contract.

 

Defendant objects to this Request For Admission on the ground that after reasonable inquiry the information known or readily obtainable by her is insufficient to accurately respond to this request. Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt and any agreement giving rise to the alleged debt and Plaintiff’s Initial Disclosures are insufficient. Based upon the foregoing, Defendant responds as follows: DENIED

 

5.         Admit Defendant is indebted to DELL FINANCIAL SERVICES/CIT ONLINE BANK and its subsequent assignee, the Plaintiff, for the Account Balance as defined above with interest at the rate of 10.00% .

 

Defendant objects to this Request For Admission on the ground that after reasonable inquiry the information known or readily obtainable by her is insufficient to accurately respond to this request. Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt and any agreement giving rise to the alleged debt and Plaintiff’s Initial Disclosures are insufficient.

Defendant further objects on the grounds that plaintiff’s definition of Account balance includes Attorney’s Fees and Costs. Any such award is only within the authority of the court and therefor this request is improper. Based upon the foregoing, Defendant responds as follows: DENIED

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Any thoughts? I'd like to get this out asap as everything is due next Thursday. I've also got my responses to their Production Requests ready but am waiting to post them so I don't muddy the water so to speak.

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Are you sure about #5? Defendant further objects on the grounds that plaintiff’s definition of Account balance includes Attorney’s Fees and Costs.

 

Is that calculated in the complaint?  Unless the cardmember specifically states this, they cannot include it in the complaint.  They can ask for attorneys fees as the court deems proper.  You may need to research this part, I am going by my state rules. (lots of similar things with colo and utah)   I heard (hearsay lol) that this type of thing may be a violation of something. (I am alot of help, I know) Kent would probably know.

 

I think all your others look good.

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Thanks Shellie, The attorneys fees are calculated in their definitions section for their Admissions and Production requests. I based this on my response to their complaint where they talk about attorney's fees. There was disagreement about this being a violation so I dropped a possible counter-claim for violations.

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